The State of the Indian Judiciary: A Report by DAKSH is a path-breaking endeavour with the high purpose of attracting attention to an important area of national concern. The Report holds a mirror to the soul of the judicial system and tells us that the disillusionment and cynicism the system has engendered is a strong negative social critical mass. It conveys the message that judicial reforms are too serious a matter to be left to the judges alone. It is only trained experts in professional management, with full cooperation from the members of the local Bar, that can extricate the trial system from the morass it has descended into. To be clear, this Report emphasises the inefficiency in procedures. It does not deal with the philosophy of substantive justice and changes, if any, to the concept of justice itself.
Justice, it is said, is the greatest interest of humans on earth. The history of institutional mechanisms to resolve conflicts between citizens and the state, and citizens inter se, is in itself a reflection of civilisational values and the state of evolution of any society. Indian independence and the ushering in of a new Constitution was an event of global significance and was in itself a spiritual movement not only for the people of India, but for the whole world, which at the close of the World War was groping for a new world order to save humanity from the culture of wars and armed conflicts.
The realisation of our constitutional aspirations will, as Sir Alladi has observed, depend upon organic laws giving effect to constitutional provisions; the adoption of principles of English common law as a matter of justice, equity, and good conscience; the acceptance of convention in the working of other constitutions; and above all, the law-abiding spirit of average citizens in India, which is the greatest asset for the proper working of the Constitution. In his book, Making Our Democracy Work, Justice Stephen Breyer describes a meeting with the Chief Justice of an African country who asked him why Americans do what the court says. Justice Breyer’s answer was that there are no magic words on paper; following the law is a matter of custom, of habit, and of widely shared understanding as to how those in government and members of the public should, and will, act when faced with a court decision they strongly dislike. The answer lies not in doctrine but in history.1
viA long time ago, an English judge lamented that if Britain’s business methods were as antiquated as its legal methods, Britain would have been a bankrupt country. Law, it is said, is a notorious laggard. It does not reach out as science does. It follows social consensus which is itself behind the need of the times. The mantle of omniscience and infallibility that is supposed to descend on a judicial personality by reason of his appointment alone is a worn-out cliché. This is amply proven by the state of the judiciary today. Litigations linger on for generations. It is the result of unscientific, non-productive, petrified procedures and a history of wasted judicial time over routine non-judicial repetitive motions in courts without any value addition to the decision-making process. We are committing unthinking unilateral disarmament against injustice. Each court has its own peculiar problems and cultural limitations and needs specially tailored case-flow management techniques. One size does not fit all. The serious problem is that superior courts, which do not have the expertise to effectively monitor the work of the trial courts, have adopted a top-down remote-control model. A case-flow management system which does not utilise the expertise of computer systems or men who can design an assembly line for case flow, and a system which does not have an auxiliary adjudicative support system enlisting the cooperation of the local Bar for pre-trial planning and consultations for the elimination of exaggerated claims and time-consuming motions, can only perpetuate the problem and not solve it. On and after a fixed date all future filings must go on an assembly line with time-bound monitored progress. The backlog should be addressed by a self-liquidating mechanism.
The Report throws up some interesting facts. For instance, while the national average of percentage of cases in relation to population is 1.77 per cent, some 139 districts (out of 700 and odd districts) have half of that ratio at 0.88 per cent. Some 41 districts have only a fourth of the national average at 0.44 per cent. Even in these 180 districts, a desired time limit on pendency is not achieved.
These are not matters pertaining to the High Courts and the Supreme Court, which are in a league of their own. The creative contribution of the Supreme Court of India in dealing with the leaving stream of our national life, steering between the extremes of rigidity and formlessness, and unravelling and mastering the secret of application of the eternal principles of law to our ever-changing conditions is truly remarkable. But the response of the trial system to the needs of society is disappointing.
Only about 10 per cent of cases from trial courts go to the High Courts; from High Courts to the Supreme Court it is less than 1.5 per cent. The place where things really happen is the trial court and within the trial system. The problems of the superior courts in their correctional jurisdiction arise from viithe failure of the trial system. The result is loss of man hours, wages, and productivity on account of non-productive, idle listing of cases, estimated at Rs 50,387 crores a year, apart from the actual wasted expenses, estimated at nearly Rs 30,000 crores a year!
The stereotyped, top-down system has really suffered banality, which has foreclosed any fresh look at the problem. Any light from outside is not only not welcome but, indeed, is seen as an intrusion into judicial independence.
What is urgently needed is an open-minded exposure to scientific methods. Through this Report, DAKSH has more than established the demand for a fresh look. All this has been said before: but it has to be said again and again since nobody seems to listen! Those who hold sway over our judicial destiny must have the good sense to listen at least now.
M.N. Venkatachaliah
Former Chief Justice of India
Bengaluru
30 April 2016
1. Stephen Breyer. 2010. Making Our Democracy Work: A Judge’s View. New York: Alfred A. Knopf.